Chamblee v. Chamblee

• Decision Date: 25 April 1952
• Citation: 248 S.W.2d 422
• Parties: CHAMBLEE v. CHAMBLEE.
• Court: United States State Supreme Court — District of Kentucky

Page 422

248 S.W.2d 422

CHAMBLEE v. CHAMBLEE.

Court of Appeals of Kentucky.

April 25, 1952.

James W. Smith, Glenn W. Denham, and Elizabeth Gillis, Middlesboro, for appellant.

L. O. Siler, Williamsburg, for appellee.

CLAY, Commissioner.

This is a habeas corpus proceeding in which a father, appellant, is attempting to obtain possession of his two infant children from his former wife, appellee. The relief sought was denied.

The parties were married in 1938. In 1950 they resided in Alabama, and in June of that year, in that state, appellee was granted a divorce from appellant and was awarded custody of the two children. The judgment provided that appellee should not remove them from the state for a period of longer than two weeks duration.

In July 1951 appellant applied to the Alabama court which had granted the divorce, and asked that custody of the children be awarded to him on the ground that appellee was no longer a fit and proper person to have their care. At that time the parents and the children were still residents to and domiciled in Alabama. Summons was served on appellee there. Two or three days later she moved to Tennessee, and subsequently came to live with her parents in Kentucky, bringing the children with her.

On August 20, 1951, the Alabama court entered an order declaring appellee was not a fit and suitable person to have the care and custody of the children, adjudged that she had violated the original court order by removing them from the state, and awarded their custody to appellant. The present proceeding is based upon this judgment, and appellant's position is that it must be given full faith and credit.

Appellee argues the judgment was void on the ground the children were absent from Alabama at the time of its entry. She apparently concedes the judgment may not be collaterally attacked if the court had jurisdiction of the parties and subject matter. In a custody proceeding the subject matter is the child, and the presence of the child within the jurisdiction, either a actually or constructively, is the basis of the court's power to adjudicate this question. In Callahan v. Callahan, 296 Ky. 444, 177 S.W.2d 565, it was said that jurisdiction was dependent upon the 'domicile' of the child within the state. See also Shippen v. Bailey, 303 Ky. 10, 196 S.W.2d 425, and Abbott v. Abbott, 304 Ky. 167, 200 S.W.2d 283. Other authorities declare that 'residence,' 'inhabitancy,' or 'living within the state' supports jurisdiction. See 17 Am.Jur., Divorce and Separation, Section 688; 116 A.L.R. 1309; McMillin v. McMillin, 114 Colo. 247, 158 P.2d 444, 160 A.L.R. 400. It is not necessary for us to distinguish the differing legal effects of these terms, as the children here involved were inhabitants of, resided and were domiciled in Alabama when appellant petitioned the court to award him their custody.

Appellee insists the Alabama court lost its jurisdiction because the children were absent from the state at the time the judgment was entered. She relies upon the Callahan and Abbott cases above cited, wherein we determined that a foreign court had no jurisdiction to make a custody award where the children resided in Kentucky at the inception of the proceedings. The difference between those cases and the present one is readily apparent. When appellant initiated his action, the children were in Alabama, not Kentucky. Appellee's removal of them from the state after she was served with summons clearly could not destroy the power and authority of the Alabama court. Once jurisdiction had attached, it continued until a final judgment was entered, and the children's physical presence in or absence from the state at the time of its entry is of no significance. See Roberts v. Roberts, 300 Ky. 454, 189 S.W.2d 691.

Appellee next contends the Alabama judgment could only be conclusive with respect to the status of the children as of the time it was entered, and that any other court having jurisdiction may redetermine the question of custody upon a proper showing of changed conditions. This general principle was acknowledged in Shippen v. Bailey, 303 Ky. 10, 196 S.W.2d 425, and Frick v. Kaufman, 310 Ky. 829, 222 S.W.2d 185.

It is evident that a foreign judgment need not be given more faith and credit than a domestic one. Since a true custody proceeding has an in rem aspect, and the dominant consideration is the welfare of the child, such judgments are not permanent in character and may be altered upon the showing of materially changed conditions. Yet the right of any court to determine the proper custodian must be based upon its own authority to adjudicate that issue.

This requires us to examine the extent to which a court may, in a habeas corpus proceeding, undertake to change the possession of or transfer the custody of children. Historically habeas corpus was an extraordinary writ to obtain the release of a person held without legal authority. See 25 Am.Jur., Habeas Corpus, Section 2. Insofar as infants are concerned, this remedy does not involve the child's personal freedom, but rather the right of particular persons to have immediate possession or control of the child. Under Section 399 of the Criminal Code of Practice the basis of the writ is that the infant 'is detained without lawful authority.'

It has always been recognized that equity courts have exclusive jurisdiction to determine finally the question of custody. See Rallihan v. Gordon, Judge, 176 Ky. 471, 195 S.W. 783; Strangway v. Allen, Judge, etc., 194 Ky. 681, 240 S.W. 384. In those cases it was pointed out that even though habeas corpus is a proper remedy to effect the...